Full opinion text
LUCERO, Circuit Judge. Convicted in the Oklahoma courts of the first-degree murder of Jimmy DeWayne Thompson and sentenced to death, Brian Spears and Dudley Powell each filed a 28 U.S.C. § 2254 petition seeking relief from their convictions and sentences. After concluding that photographs introduced during the second stage of trial rendered the sentencing stage fundamentally unfair, the federal district court granted relief from both Spears’ and Powell’s death sentences, but denied relief on numerous other claims challenging both defendants’ convictions. We now consider four appeals: the State appeals the district court’s grant of habeas relief from the death sentences, and Spears and Powell cross-appeal the denial of relief on the other claims. Because all four appeals arise out of the same set of facts and present similar issues, we join them for disposition. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we take the district court’s view of the issues and affirm. I On the evening of September 21, 1990, the day Thompson died, Thompson, age twenty-two, Spears, age twenty, and Spears’ then girlfriend, Vickie Hensley, were cruising around Pauls Valley, Oklahoma, in Thompson’s truck. At Spears’ request, Thompson purchased alcohol and the three began drinking. During the evening, they drank a cocktail of Kool Aid and Everclear from a gallon milk jug, as well as whiskey and beer. They were joined at various times by Powell, age eighteen, Claiborne Johnson III, age twenty-two, and Mickey Daniels, none of whom had met Thompson before that evening. Sometime after Powell joined the group, Spears began driving the truck because Thompson was intoxicated. During the course of the evening, they stopped at several places to refresh their supply of alcoholic beverages. Later, they decided to continue imbibing at the Klondike Cemetery, a popular drinking spot. On the way to the cemetery, Powell and Spears discussed beating Thompson and taking his truck. At the cemetery, all exited the truck. Powell told Spears, Johnson, and Daniels that he was going to “jump” Thompson and that they should join the beating. (3 Tr. at 712.) As the group walked along the cemetery road, Powell hit Thompson in the head with his fist. With the first blow, Thompson fell to the ground, where he lay “moaning” and “hollering.” (4 id. at 942.) Johnson began kicking Thompson, while Powell kicked and jumped on Thompson’s head and chest. At some point, Johnson and Powell began hitting Thompson with their fists. Spears also joined the beating and began jumping on and kicking Thompson on the chest and possibly his head. The beating lasted from three to ten minutes. Neither Daniels nor Hensley participated; after observing the attack for sometime, they returned to the truck. After the beating, Spears grabbed Powell and Johnson by their arms, produced a knife, and said that they had to kill Thompson because he could testify against them. Each stabbed Thompson several times. Sometime during the stabbing attack, Powell momentarily returned to Thompson’s truck, where Hensley and Daniels had retreated, and told them Johnson had stabbed Thompson in the throat. Powell told them that Johnson intended to take Thompson’s truck to Tulsa and sell it, and that Spears agreed with this plan. Powell then returned to the crime scene. Powell, Spears, and Johnson subsequently left Thompson’s body and returned to the truck. Spears told everyone to listen to Johnson, who directed them not to say anything about what had happened. Spears then told Hensley and Daniels that if anyone asked them if they had seen Thompson that evening, they should say that Thompson had taken them to a football game and dropped them off after the game. Upon leaving the cemetery, the group first took Hensley home. The remaining four then went to the home of Johnson’s girlfriend, Lashonda Austin, where Johnson told Austin that they had killed a man that night in self-defense and where Spears confirmed the killing. After leaving Austin’s house, Powell and Johnson dropped off Spears and Daniels. Much later, Johnson took Powell home and eventually parked Thompson’s truck at an apartment building. The following day, Johnson was arrested in a neighboring town while in possession of Thompson’s truck and wallet. Spears and Powell were arrested soon thereafter. At trial, the medical examiner, Dr. Larry Balding, testified that Thompson died from blunt-force injury to the head, resulting in a skull fracture and bleeding into and on the brain. According to Dr. Balding, a single blow could have caused the head injury or death. While he did not know the actual number of blows to Thompson’s head, he was certain Thompson sustained more than one blunt-force blow to the body. However, Dr. Balding did not believe that any of the blows to the body would have caused death, either individually or in combination. Dr. Balding further testified that Thompson received fifty to sixty knife wounds to his head, neck, chest, abdomen, and back. As a result of the stabbing, six to eight inches of Thompson’s small intestine protruded. Parts of other internal organs were visible through the chest. Apart from what were referred to as two possible peri-mortem knife wounds, all other knife wounds were inflicted post-mor-tem. Any potentially fatal stab wounds were delivered post-mortem. Neither Spears nor Powell testified or presented any evidence at the trial’s first stage. Based on the State’s evidence, the jury found both guilty of first-degree murder. The State’s second-stage presentation was brief. After incorporating all first-stage evidence, the State presented six photographs of Thompson’s body taken at the crime scene. Spears presented two mitigation witnesses. His sister, Sharlene Flannery, testified that Spears dropped out of school in the tenth grade, that he babysat her children, that he has one child, that she never saw him fight or be so angry that he would hurt or kill someone, and that he regularly attended church. Reverend John Stiger testified that he had ministered to Spears’ family and had watched Spears grow up. He stated that Spears was a normal young man with no prior convictions, who had positively influenced the lives of people in the county jail. Other mitigation evidence emphasized Spears’ youth and his intoxication at the time of the crime. Powell also presented two mitigation witnesses. His mother, Connie Walls, testified that Powell grew up without a father, experienced rejection from his family, adored his three step-siblings and helped care for them, generally stopped caring when his step-sibling twins’ father kidnapped them, regularly attended church, stopped attending school in seventh grade after being held back due to his learning disabilities, loved music, and has mechanical ability. Rachel Smith, who had known Powell since he was six or seven,.testified that she acted as a surrogate grandmother to him, and he minded her when asked to do so. Other mitigating factors included Powell’s youth, likelihood of rehabilitation, and intoxication at the time of the crime. Based on all of the evidence,' the jury found, with respect to both Spears, and Powell, that Thompson’s murder was especially heinous, atrocious, or cruel and that the two committed the murder to avoid arrest or prosecution. The jury, however, did not find that either would be a continuing threat to society. After weighing the two aggravators against the mitigating evidence, the jury delivered death sentences for both Spears and Powell. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Spears’ conviction and sentence on direct appeal and denied his first application for post-conviction relief. Spears v. State, 900 P.2d 431 (Okla.Crim.App.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995); Spears v. State, 924 P.2d 778 (Okla.Crim.App.1996). Spears then filed a petition for a writ of habeas corpus in federal district court. Identifying several issues as unexhausted, the district court abated federal proceedings and directed Spears to return to state court to exhaust these issues. He did so, and the OCCA denied relief on a second application for post-conviction relief. Spears v. State, No. PC-99-1099 (Okla.Crim.App. Oct. 13, 1999). Federal habeas proceedings then resumed. Granting Spears habeas relief from his death sentence, the district court held that the introduction of the crime-scene photographs at the trial’s second stage deprived him of a fundamentally fair sentencing proceeding. However, the district court rejected all other second-stage arguments and denied relief from Spears’ conviction. Powell’s conviction and sentence were also upheld by the OCCA, and his application for post-conviction relief was similarly denied. Powell v. State, 906 P.2d 765 (Okla.Crim.App.1995), cert. denied, 517 U.S. 1144, 116 S.Ct. 1438, 134 L.Ed.2d 560 (1996); Powell v. State, 935 P.2d 378 (Okla. Crim.App.1997). As with Spears, on federal habeas review, the district court granted Powell relief from his death sentence due to the constitutional error arising from admission of the photographs, but rejected all other second-stage arguments and denied relief from Powell’s conviction. The district court stayed enforcement of Spears’ and Powell’s judgments pending appeals. The State, Spears, and Powell all appeal. II Because Spears and Powell filed their petitions for habeas relief after April 24, 1996, the effective date of AEDPA, AED-PA’s provisions apply to both appeals. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, if a claim is adjudicated on the merits in state court, we will grant habeas relief to a petitioner only if he can establish that the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1), (2). AEDPA requires us to presume that state court factual findings are correct, and places the burden on the petitioner to rebut this presumption by clear and convincing evidence. § 2254(e)(1). If the state court did not decide a claim on the merits, and it is not otherwise procedurally barred, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. See Hooker v. Mullin, 293 F.3d 1232, 1237 (10th Cir.2002), cert. denied, 537 U.S. 1165, 123 S.Ct. 975, 154 L.Ed.2d 903 (2003). When, however, “the district court’s findings of fact are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review.” Morris v. Burnett, 319 F.3d 1254, 1268 (10th Cir.2003) (quotation and brackets omitted). We apply these standards to determine whether the district court correctly assessed each issue before us on appeal. See Darks v. Mullin, 327 F.3d 1001 (10th Cir.2003). Ill A. State’s Appeals The federal district court held that the State’s penalty-phase introduction of crime-scene photographs showing Thompson’s mutilated body deprived Spears and Powell of a fundamentally fair sentencing proceeding as guaranteed by the Eighth and Fourteenth Amendments. On appeal, the State argues that these admittedly gruesome photographs were relevant to both the heinous, atrocious, or cruel and continuing-threat aggravators, that their relevance outweighed any danger of unfair prejudice, and that the photographs were therefore properly admitted in evidence. “Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights.” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir.1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)); see also Willingham v. Mullin, 296 F.3d 917, 928 (10th Cir.2002). When, as here, habeas petitioners challenge the admission of photographic evidence as violative of the Constitution, this court considers “whether the admission of evidence ... so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); see also Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of [sentencing].”); Smallwood, 191 F.3d at 1275 (examining “whether the admission of the photographs rendered the proceedings fundamentally unfair”); Willingham, 296 F.3d at 928 (addressing whether admission of photographs was “so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process” (quotation omitted)). “[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.2002) (quotations omitted); see also Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir.) (recognizing that only a narrow category of infractions violates fundamental fairness), cert, denied, 537 U.S. 1093, 123 S.Ct. 703, 154 L.Ed.2d 640 (2002); Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.1998) (approaching fundamental-fairness analysis with “considerable self-restraint” (quotation omitted)). Although there are no clearly defined legal elements, the fundamental-fairness inquiry requires us to look at the effect of the admission of the photographs within the context of the entire second stage. See Duckett, 306 F.3d at 988. We consider the relevance of the photographs and the strength of the aggravating evidence against Spears and Powell as compared to the mitigating evidence in their favor and decide whether admission of the photographs could have given the State an unfair advantage. Ultimately, we consider whether the jury could judge the evidence fairly in light of the admission of the photographs. See id. at 989. Applying this fundamental-fairness standard and mindful of the standards of review set forth by AEDPA, we conclude that the federal district court appropriately granted habeas relief. In Oklahoma, a murder is especially heinous, atrocious, or cruel if it was “preceded by torture or serious physical abuse. Torture includes the infliction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering.” Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir.2001) (quotation omitted); see also Powell, 906 P.2d at 779-80 (recognizing that it is critical for the State to prove the victim’s conscious physical suffering before death); Spears, 900 P.2d at 443, 449 (same). According to the State, because Thompson was alive for part of the stabbing and three of the photographs depict his extensive head injuries, all six photographs were relevant to prove he suffered serious physical abuse prior to death. The OCCA decided the photographs were relevant and properly admitted to prove Thompson suffered serious physical abuse prior to his death, in light of testimony that Thompson moaned and suffered two peri-mortem stab wounds. Powell, 906 P.2d at 780; Spears, 900 P.2d at 443. That Thompson suffered serious physical abuse in the common sense of the term is not in doubt. Rather, the question under Oklahoma law is whether the photographs were relevant to show conscious physical suffering. See Willingham, 296 F.3d at 929 (noting that when a “victim dies or loses consciousness early on in an assault, photographs of all of [his] injuries might involve irrelevant and/or unduly prejudicial material at the penalty phase, since the [heinous, atrocious or cruel] ag-gravator focuses on the conscious suffering of the victim” (citing Powell, 906 P.2d at 780)). On this point, the OCCA questioned the relevance of the photographs to the jury’s finding of the heinous, atrocious, or cruel aggravator: These photographs are not ... probative of whether Thompson was conscious during the beating which is the critical inquiry in determining whether a murder was especially heinous, atrocious or cruel. The probative value of these photographs is very slight especially in light of their gruesome nature. Their probative value scarcely exceeds their prejudicial effect. We note the introduction of the six photographs came very close to causing a second sentencing hearing given the paucity of evidence supporting the ag-gravator especially heinous, atrocious or cruel. Because such photographs were not admitted in first stage, they were more shocking seen for the first time in the punishment stage. Spears, 900 P.2d at 448 (emphasis added); see Powell, 906 P.2d at 780 (setting forth identical reasoning). Despite concerns about the photographs, however, the OCCA decided that them probative value outweighed their prejudicial effect. Powell, 906 P.2d at 780; Spears, 900 P.2d at 443. Contrary to the OCCA, the federal district court held that the photographs denied Spears and Powell a fundamentally fair sentencing proceeding because the photographs’ prejudicial effect outweighed their probative value: None of the stab wounds focused on in the photographs can be considered probative of the question of conscious physical suffering, the only injuries arguably being relevant to such a determination being those from the beating. While the jury was not instructed that it had to find “conscious physical suffering,” it was instructed it had to find the victim’s death was preceded by torture or serious physical abuse.... Because none of the stab wounds occurred while the victim was conscious or preceded his death, such injuries cannot be considered relevant to the question before the jury. Spears v. Gibson, No. CIV-96-1862-M, slip op. at 44-45 (W.D.Okla. Oct. 15, 2001); Powell v. Ward, No. CIV-97-516-M, slip op. at 63 (W.D.Okla, Aug. 22, 2001). This improper evidence, along with the lack of evidence of conscious physical suffering during the beating, caused the district court to conclude that the second-stage proceedings were unconstitutionally infirm. Having viewed the photographs and reviewed the entire record, we agree with the district court that the introduction into evidence of the photographs depicting Thompson’s numerous post-mortem stab wounds, large gash wounds, exposed intestines and swollen face and black eye rendered the second stage fundamentally unfair. Because the heinous, atrocious, or cruel aggravator focuses on Thompson’s conscious suffering, and the evidence showed Thompson died or lost consciousness early on in the beating, the photographs of all of his injuries were unduly prejudicial at the second phase. See Willingham, 296 F.3d at 928-29 (citing Powell, 906 P.2d at 780). Instead, the gruesome photographs potentially misled the jury, as they necessarily had a strong impact on the jurors’ minds. Minimal evidence suggested Thompson was conscious or even alive during the stabbing. At most, two of the fifty to sixty stab wounds were peri-mortem. Neither the peri-mortem stab wounds nor conscious suffering were connected to the specific photographs. The photographs do not show any defensive wounds, nor do they support, clarify, or illustrate any testimony indicating Thompson consciously suffered physical abuse before his death. See Jackson, 143 F.3d at 1322; Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.1997). Even if the photographs were minimally relevant to the heinous, atrocious, or cruel aggravator, the photographs’ prejudicial effect outweighed their probative value. Important to this conclusion is the fact that the State waited until the second stage to introduce the photographs. By contrast, the State introduced comparatively innocuous photographs at the first stage, seeming to deliberately await the second stage to present the more gruesome photographs solely for their shock value. Because the photographs were the primary aggravating evidence specifically presented at the second stage, they constitute a major part of the State’s second-stage case. As the OCCA observed, and as set forth above, a paucity of evidence supported the heinous, atrocious, or cruel aggravator. See Powell, 906 P.2d at 780; Spears, 900 P.2d at 443. As to the “avoid arrest or prosecution aggravator” found by the jury, while there was some evidence to support the aggravator, we agree with the district court that such evidence was not particularly strong. When viewed together with the mitigation evidence presented by Spears’ and Powell’s respective trial counsel, including evidence of Spears’ and Powell’s youth, intoxication at the time of the crime and their lack of prior criminal history, we conclude that such evidence was not sufficiently strong standing alone such that the jury would have returned a sentence of death. This highly inflammatory evidence fatally infected the trial and deprived Spears and Powell of their, constitutional rights to a fundamentally fair sentencing proceeding. The OCCA’s decision that the photographs’ relevance exceeded their prejudice was objectively unreasonable, see 28 U.S.C. § 2254(d); see also Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002) (requiring a habeas applicant to show that the state court applied Supreme Court law to the facts in an objectively unreasonable manner and distinguishing unreasonable and incorrect applications of law), and we conclude that the district court correctly decided that the photographs rendered the second stage of trial fundamentally unfair. To the extent that the OCCA implicitly determined that the admission of the photographs did not render the second stage fundamentally unfair, we conclude that this was an unreasonable application of clearly established Supreme Court precedent. See, e.g., Romano, 512 U.S. at 12, 114 S.Ct. 2004; Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Bruton, 391 U.S. at 131 n. 6, 88 S.Ct. 1620. B. Spears’ and Powell’s Cross-Appeals: 1. Bruton Error and Failure to Sever Both Spears and Powell argue that the trial court improperly admitted out-of-court statements that each of them made implicating the other, in violation of their constitutional rights to a fair trial and to confrontation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Additionally, both argue that introduction of these statements resulted in a constitutionally unfair trial, and, therefore, the trial court should have severed their trials. Because Spears and Powell base their severance claims on the Bruton errors, we first address the Bruton claims and then the severance claims. a. Bruton In Bruton, the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefen-dant. Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); see also id. at 207, 107 S.Ct. 1702; Cruz v. New York, 481 U.S. 186, 187-88, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). Bruton applies, however, only if the statement expressly implicates the defendant. See Richardson, 481 U.S. at 208, 107 S.Ct. 1702. “Richardson allows a court, despite the Confrontation Clause, to admit the confession of a non-testifying co-defendant [that does not expressly implicate the defendant]. The confession must be (i) redacted to eliminate any reference to the non-confessing defendant, and (ii) accompanied by an appropriate limiting instruction that the confession is to be considered only against the confessor.” Fowler v. Ward, 200 F.3d 1302, 1307 (10th Cir.2000) (citing Richardson, 481 U.S. at 211, 107 S.Ct. 1702), overruled on other grounds by Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir.2001). “This is clearly a two-pronged requirement; a redaction, no matter how perfect, nevertheless requires an appropriate limiting instruction immediately following the admission of the confession.” Id. i. Spears Under Bruton, Spears first challenges Officer Wigley’s testimony concerning Powell’s statement. Officer Wigley testified as follows: A [Powell] said that he had been riding around Pauls Valley drinking with some others. Q Did he name those others? A Yes, he did. Q Okay. That’s fine. A And they had been riding around Pauls Valley drinking, and they had picked up various riders at different locations. And that they ended up at the Klondike Cemetery at the cattle guard and gate area, at the road leading up to the cemetery. A He said that they got out of the pickup at the gate and stood around drinking there for a little while. Then they proceeded to walk up the road which leads to the cemetery. After they had traveled some distance, he decided that he would whip [Thompson’s] ass or kick ... [Thompson’s] ass. A At which time [Powell] then struck [Thompson] in the face. And [Thompson] went to the ground, at which time he began to kick and stomp [Thompson] along with the others. They-they beat him for sometime. I’m not sure of the time that they were there beating on him. Then they walked away from the body. And [Powell] said that it was decided they would steal the pickup, and that they were going to have to kill [Thompson], They' returned to the body, at which time a knife had been produced, and that [Johnson] took the knife and began stabbing [Thompson]. (4 Tr. at 1113-14.) Thus, in paraphrasing Powell’s out-of-court statement, Officer Wigley made general reference to the group involved in the murder but did not mention Spears by name. Spears argues that given that: (1) both Hensley and Daniels had testified and identified Spears as one of those persons who participated in the crime prior to Officer Wigley’s testimony, and (2) Johnson testified immediately after Officer Wigley and named Spears as part of the group, Officer Wigley’s references to “others” and “they” were transparent, making it obvious that. Officer Wigley was referring to him. Because Powell’s statement, as presented by Officer Wigley, was not incriminating on its face, and became incriminating only after it was linked to evidence introduced before and after Officer Wigley’s testimony, see Richardson, 481 U.S. at 208, 107 S.Ct. 1702, admitting Powell’s statement did not violate Bruton principles if the statement was properly modified to eliminate any reference to Spears and the trial court gave an appropriate limiting instruction. See Fowler, 200 F.3d at 1307 (citing Richardson, 481 U.S. at 211, 107 S.Ct. 1702). As the above-quoted testimony shows, Officer Wigley paraphrased Powell’s statement to eliminate any reference to Spears by using the neutral pronouns “others” and “they.” Although the Supreme Court has “expressed] no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a ... neutral pronoun[,]” Richardson, 481 U.S. at 211 n. 3, 107 S.Ct. 1702, this court has held that neutral pronouns are proper, if a defendant’s incrimination is by reference to evidence other than the modified statement and the jury receives a proper limiting instruction. See United States v. Verduzco-Martinez, 186 F.3d 1208, 1214 (10th Cir.1999); United States v. Green, 115 F.3d 1479, 1484-85 (10th Cir.1997); see also Gray v. Maryland, 523 U.S. 185, 194-96, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (recognizing that proper modification incriminates inferentially and does not point directly to defendant). Because Officer Wigley did not mention Spears by name or description, any inference connecting Spears to the statement could be made only after considering additional evidence. See Verduzco-Martinez, 186 F.3d at 1214. Thus, Powell’s statement was properly modified by Officer Wigley. Despite the proper modification, however, Spears correctly argues that the trial court failed to give a proper limiting instruction after admitting Officer Wigley’s paraphrase of Powell’s confession. We agree that this failure resulted in constitutional error. See Fowler, 200 F.3d at 1307. The general instruction given at the end of the trial charging the jury to give separate consideration to each defendant was insufficient to satisfy Richardson. Id. at 1307. “The Richardson limiting instruction must be given immediately following the introduction of the co-defendant’s confession to safeguard against inappropriate use of the confession against the non-confessing co-defendant.” Id. When faced with a Bruton error, harmless-error analysis applies to decide entitlement to relief. Harmless error is assessed “in the context of the entire case.” Lee v. Illinois, 476 U.S. 530, 547, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); cf. Fowler, 200 F.3d at 1307 (pre-AEDPA) (assessing harmless error under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). The OCCA decided that any Bruton error was harmless, and we conclude that this holding was not contrary to or an unreasonable application of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Spears, 900 P.2d at 444 (applying without citing Chapman); 28 U.S.C. § 2254(d)(1). Our review of the record reveals nothing that would demonstrate actual prejudice. Officer Wigley made no reference to Spears in restating Powell’s confession. More importantly, Powell’s statement was not vitally important to the State’s case against Spears. Rather, other independent evidence pointed to Spears’ involvement in the murder. Three eye-witnesses — Hensley, Daniels and Johnson — testified about Spears’ participation in beating Thompson. Johnson testified about Spears’ participation in the later stabbing. Therefore, the erroneously admitted statement was merely cumulative to other uncontroverted evidence that was properly before the jury. See Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Furthermore, this case was not so complex that the jury could not fairly evaluate the evidence against each co-defendant. Nor would the jury have found the State’s case significantly less persuasive had Officer Wigley’s testimony been excluded. See Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Spears also argues that the testimony of Hensley and Daniels, implicating him in the murder, violated Bruton. Specifically, he objects to Hensley’s testimony that Powell asked the group, including Spears, who was going to hit Thompson, and to Daniels’ testimony concerning a conversation about the stabbing that Daniels had with Powell while the two were in jail. Daniels’ testimony, according to Spears, was the only evidence corroborating Johnson’s testimony concerning the stabbing. Recognizing that Hensley’s and Daniels’ testimony relating Powell’s statements, which inculpated Spears, should not have been admitted, the OCCA nonetheless concluded that any error was harmless beyond a reasonable doubt because “other evidence” showed Spears’ participation in the crime. Spears, 900 P.2d at 444 (applying without citing Chapman). Assuming these statements violated Bruton, we conclude that the OCCA’s harmless-error determination was not contrary to or an unreasonable application of Chapman. See 28 U.S.C. § 2254(d)(1). Spears argues that admission of these statements was not harmless error because the “other evidence” to which the OCCA refers came from Hensley and Johnson, and was not credible. Specifically, Spears contends Johnson had a deal with the prosecutor and Hensley’s preliminary-hearing testimony differed from her trial testimony because she and the prosecutor reached a deal resulting in her release from jail. On this point, we note that the jury received sufficient information to evaluate the credibility of both Hensley’s and Johnson’s testimony. Hensley informed the jury that she had been required to post a material-witness bond, and that the bond had been drastically reduced. She testified that the State had given her no incentive to testify and that she had lied in her prior written statements and during her preliminary-hearing testimony to cover up for her then-boyfriend Spears. She knew she could yet be charged with perjury for giving false statements. Moreover, she admitted at trial that she had just remembered that Spears and Powell had talked in the truck on the way to the cemetery about beating Thompson and taking his truck. Lastly, she informed the jury of her confinement and later release from jail. Similarly, Johnson fully informed the jury about the plea agreement, enabling the jury to evaluate the credibility of his testimony. In sum, when taken in the context of the entire trial, any agreement that Johnson and Hensley may have had with the prosecution does not establish that any assumed Bruton error was harmful. Hensley, Daniels and Johnson all testified consistently about the murder, and their testimony was uncontroverted. As a final argument, Spears contends that the cumulative effect of the Bruton errors identified by the OCCA deprived him of a fair trial. Spears did not raise this claim in state court. However, because the State does not contend that this claim is procedurally barred, we consider Spears’ argument on its merits. See Hooks v. Ward, 184 F.3d 1206, 1216-17 (10th Cir.1999) (recognizing that the State bears the burden of asserting procedural default). We may deny relief on the merits of a claim even if that claim has not been exhausted in state court. See 28 U.S.C. § 2254(b)(2). Although each of the individual Bruton errors was harmless, “the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” Duckett, 306 F.3d at 992 (quotation omitted). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Id. (quotation omitted). We conclude that the Bruton errors, even when accumulated, did not have a sufficiently prejudicial effect to deny Spears a fair trial. Strong, consistent evidence supported his conviction. ii. Powell Powell argues that he was deprived of his right to a fair trial and his right to confront witnesses by the State’s introduction of Spears’ out-of-court statement. See Bruton, 391 U.S. at 126, 88 S.Ct. 1620. Specifically, Powell objects to Johnson’s testimony that Spears told Johnson and Powell that they had to kill Thompson because he could testify against them. Concluding that the statement should not have been admitted as it violated Bru-ton, the OCCA nevertheless held that any error was harmless beyond a reasonable doubt because the properly admitted evidence was overwhelming and the prejudicial effect of the statement was insignificant. Powell, 906 P.2d at 772-73 (citing, e.g., Cruz, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162). In reaching this conclusion, the court noted: Powell admitted he had decided to “kick [Thompson’s] ass.” He admitted he beat, kicked and stomped Thompson with the others. Powell admitted after the beating it was decided that they would have to kill Thompson. Given Powell’s confession and the testimony of the other witnesses, it is inconceivable the admission of Spears’ statement contributed to the verdict. Id. at 773. Assuming a Bruton error, we conclude, in light of the substantial other evidence presented, that the OCCA’s harmlessness determination was not contrary to or an unreasonable application of Chapman. See 28 U.S.C. § 2254(d)(1). b. Severance Spears and Powell both argue that the trial court violated their constitutional right to a fair trial by failing to sever their trials. As evidence of the prejudice resulting from the failure to sever, both point to the Bruton errors discussed above. In reviewing these claims, we are mindful that “[w]hether the trial court erred in denying severance is generally a question of state law that is not cognizable on federal habeas appeal, ... for a criminal defendant has no constitutional right to severance unless there is a strong showing of prejudice caused by the joint trial.” Cummings v. Evans, 161 F.3d 610, 619 (10th Cir.1998). “Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant ... might present a risk of prejudice.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (citing Bruton). A Bruton problem alone, however, is insufficient to require severance. See United States v. Hill, 901 F.2d 880, 883 (10th Cir.1990). Because, as discussed above, any Bruton error was harmless,' the joint trial did not prejudice Powell or Spears. Even if there were a risk of prejudice, the trial court properly instructed the jury that: (1) the State had the burden of proving beyond a reasonable doubt that both Spears and Powell committed first-degree murder; (2) the jury must give separate consideration to each individual defendant; and (3) the jury should draw no inferences from Powell’s and Spears’ decision not to testify. “These instructions sufficed to cure any possibility of prejudice.” Zafiro, 506 U.S. at 541, 113 S.Ct. 933 (considering severance under Fed.R.Crim.P. 14). Thus, neither Powell nor Spears can establish prejudice so severe that they were denied then-right to a fair trial. Accordingly, the OCCA’s decisions upholding the joint trial were not unreasonable. See Powell, 906 P.2d at 773; Spears, 900 P.2d at 444; see also 28 U.S.C. § 2254(d)(1). 2. Unanimous Guilty Verdict and Sufficiency of the Evidence Spears and Powell argue that they were denied their constitutional right to a unanimous jury verdict. The Bindover Information alternatively charged them with two counts: first-degree malice murder and first-degree felony murder. Although the trial court instructed the jury on the need for a unanimous verdict, the court did not instruct the jury that its verdict must be unanimous on one count or the other. Furthermore, the verdict form did not distinguish between the two alternative counts and therefore did not indicate whether the jury believed Spears and Powell committed first-degree-malice or felony murder or both. Thus, Spears and Powell both contend that there was no unanimous verdict on either malice or felony murder, and because insufficient evidence supported both murder theories, the lack-of-a-unanimous-verdict problem remained. a. Unanimous Guilty Verdict While Spears and Powell acknowledge that the Supreme Court has held that a non-unanimous first-degree-murder verdict under similar circumstances does not violate the Constitution, Schad v. Arizona, 501 U.S. 624, 627, 645, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion), they nonetheless argue that their cases present extreme examples not covered by Schad. Further, they contend Schad does not square with the Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that a jury must find all elements of a crime, or In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that proof must be beyond a reasonable doubt. Despite wishful thinking to the contrary, Schad is controlling. This court has explained that “Oklahoma statutes have long defined the offense of ‘murder’ or ‘first degree murder’ as encompassing both malice aforethought murder and felony murder. Consistent therewith, the OCCA has characterized malice aforethought murder and felony murder as different theories for the same general offense of first degree murder.” Hain v. Gibson, 287 F.3d 1224, 1232 & n. 5 (10th Cir.2002) (recognizing this is consistent with Schad) (footnote and citation omitted), cert, denied, 537 U.S. 1173, 123 S.Ct. 993, 154 L.Ed.2d 916 (2003); see Williamson v. Ward, 110 F.3d 1508, 1523 (10th Cir.1997) (citing Schad and holding that there was no deprivation of a constitutional right under similar factual circumstances). Accordingly, we conclude that the OCCA reasonably decided that although “the jury was not instructed to find unanimously that [they] had committed first degree murder either with malice aforethought or during the course of armed robbery,” Powell, 906 P.2d at 775; Spears, 900 P.2d at 441, Spears and Powell were not denied due process. Spears and Powell next challenge the OCCA’s determination that the instructions actually required proof of both first-degree-murder alternatives. Powell, 906 P.2d at 775 n. 11; Spears, 900 P.2d at 441 n. 11; see also Romano v. State, 909 P.2d 92, 121 (Okla.Crim.App.1995) (presuming that the jury found evidence sufficient to support both malice and felony murder where defendant was charged alternatively with malice and felony murder and there were no separate verdict forms for each type of murder). We need not address this challenge to the jury instructions, because, as discussed below, sufficient evidence supported a finding of each type of first-degree murder. Lastly, Powell adds to this argument the claim that he was never charged with an underlying felony and therefore there is no proof he was guilty of robbery with a dangerous weapon. According to Powell, this precludes a conviction for felony murder. Although Powell did not raise this issue on direct appeal, we consider and reject this claim on its merits. See 28 U.S.C. § 2254(b)(2) (permitting denial of relief on merits of unexhausted claim); Hooks, 184 F.3d at 1216-17 (requiring State to argue procedural bar). Powell fails to cite Oklahoma authority, and we find none, establishing that he must be charged with an underlying felony in order to be charged with or found guilty of felony murder. Although the Bindover Information did not charge Powell with an underlying felony, in charging felony murder, it did clearly allege robbery and provided relevant facts. (See O.R. at 1.) Specifically, it alleged that Powell was “engaged in committing the crime of Robbery by Force” “by wrongfully taking and carrying away” the victim’s truck and billfold, which were in the victim’s possession and immediate presence, “without [the victim’s] consent and against his will” “by means of force and violence” at the time Powell, Spears and Johnson killed the victim. (Id.; see also id. at 118 (indicating that the underlying felony is “Robbery With A Dangerous Weapon” in first stage Instructions 14 and 15)). We conclude that this gave Powell sufficient notice of the underlying felony. b. Sufficiency of the Evidence Spears and Powell argue that insufficient evidence existed to support a finding of either malice murder or felony murder. It is settled that habeas petitioners may challenge the sufficiency of the evidence in federal habeas corpus proceedings. See Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.2003); see also Jackson v. Virginia, 443 U.S. 307, 322, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt states a federal constitutional claim.”). “[V]iewing the evidence in the light most favorable to the [State],” we will grant habeas relief only if “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 324, 99 S.Ct. 2781. The Jackson standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319. We review sufficiency of the evidence as a question of law. See Griffin v. United States, 502 U.S. 46, 58-59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (indicating that insufficiency of proof is legal error); see also Torres, 317 F.3d at 1151-52 (viewing, under circumstances of that case, sufficiency of evidence as a legal question). Under AEDPA, our review is limited to deciding whether the OCCA’s decisions that there was sufficient evidence to support a jury’s finding of both malice murder and felony murder for both Spears and Powell were contrary to or an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1); Powell, 906 P.2d at 773-75; Spears, 900 P.2d at 438-40. Oklahoma law provides the substantive elements of malice and felony murder applicable to the sufficiency of the evidence standard. Torres, 317 F.3d at 1152; see also Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. In relevant part, the Oklahoma first-degree murder statute provides: A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof. A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission of ... robbery with a dangerous weapon.... Okla. Stat. tit. 21, § 701.7A & B. Additionally, Oklahoma designates as principals persons who aid and abet the commission of a murder. Id. § 172. The Oklahoma Court of Criminal Appeals has specified that in order to convict an aider and abetter as a principal in a first degree murder prosecution, the prosecution must prove: (1) that the defendant personally intended the death of the victim; and (2) that the defendant aided and abetted with full knowledge of the perpetrator’s intent. [A]iding and abetting involves acts, words or gestures encouraging the commission of the offense, either before or at the time of the offense. [M]ere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime. Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir.1997) (quotations and citations to OCCA cases omitted); see also Torres, 317 F.3d at 1152-53. In assessing intent on sufficiency of the evidence review, this court recognizes, [f]irst, a jury is permitted to draw inferences of subjective intent from a defendant’s objective acts. Thus, even when a defendant ... denies having the requisite intent, a jury may disbelieve the defendant if [the defendant’s] words and acts in the fight of all the circumstances make [the defendant’s] explanation seem improbable. Second, a jury is permitted to find that a defendant intends those consequences which he announces a desire to accomplish. Wingfield, 122 F.3d at 1333 (quotation and citations omitted); see also Torres, 317 F.3d at 1153. i. Spears and Malice Murder Spears argues that there was insufficient evidence to support a malice-murder conviction because all of the direct evidence of his intent to kill came after Thompson was already dead. Applying the Jackson standard, the OCCA concluded that the evidence was sufficient to support the jury’s finding that Spears aided and abetted Powell in the commission of malice murder. Spears, 900 P.2d at 438-39 (applying but not citing Jackson); see also Woodford, 123 S.Ct. at 360 (presuming that state courts know and follow the law and giving the state-court decision the benefit of the doubt under AEDPA); Torres, 317 F.3d at 1152 n. 3 (assuming that the OCCA applied Jackson even though the court did not cite it). In fight of evidence that Spears believed Thompson was alive at the time he said that he, Powell, and Johnson needed to kill Thompson, and both Powell and Daniels heard noises coming from Thompson during the beating, the OCCA concluded that the jury could have found that Thompson was still alive at the time Spears entered the attack and Spears’ blows therefore contributed to Thompson’s death. Spears, 900 P.2d at 438-39. The OCCA stated that there was evidence Spears knew Powell was going to beat Thompson and was present when Powell told Johnson and Daniels to join in after he landed the initial blow. According to Hensley, Daniels and Johnson, Spears willingly joined in the attack on Thompson and beat, stomped and kicked him with Johnson and Powell. Spears’ actions belie his assertion that he did not aid and abet in the murder of Thompson. As we said in Dumire v. State, 758 P.2d 829, 830-31 [(Okla.Crim.App.] 1988), “[fit is irrelevant that the defendant may not have actually struck the fatal blow. His voluntary participation and cooperation in the attack established [his] guilt as an equally culpable principal.” Id. at 439. Our review of the trial record supports the OCCA’s decision. Spears anticipated and participated in a sustained attack against a helpless victim, who did not provoke the fatal attack. Spears, Powell and Johnson repeatedly jumped on and kicked Thompson’s head and body for at least three minutes, leaving Thompson’s body next to the road at the cemetery. Johnson testified that, although they did not start beating Thompson with the intent to kill, at some point they developed the intent to kill and knew what they were doing. Moreover, Spears was aware that they risked killing Thompson, and Daniels testified that he thought at some point Thompson would die from the beating. See Hooks v. State, 862 P.2d 1273, 1280 (Okla. Crim.App.1993) (holding that where the victim was a target of a sustained and relentless attack, and the victim received multiple injuries, circumstantial evidence was sufficient to prove that the defendant, at some point during the attack, formed the intent to kill the victim).- After the beating took place, Spears’ intent to kill became yet more apparent. Spears said that they had to kill Thompson, because he could testify against them. Spears provided the knife to stab Thompson, and there was evidence that Thompson was alive at the time the stabbing began. Johnson testified that when he first stabbed Thompson, blood squirted and hit him in the eye, suggesting the presence of blood pressure. Powell verified that Thompson was breathing right before Spears, Johnson and Powell stabbed him. Furthermore, the medical examiner testified that two of the stab wounds may have been peri-mortem. Additional evidence showed that Spears provided Hensley and Daniels with an alibi story, and Spears never expressed remorse after the killing. See Wingfield, 122 F.3d at 1333. Viewing the evidence in its totality, we conclude that there was considerable evidence of Spears’ involvement in Thompson’s murder. Given this evidence, we cannot conclude that the OCCA’s application of Jackson was objectively unreasonable. See Torres, 317 F.3d at 1156; see 28 U.S.C. § 2254(d)(1). ii. Spears and Felony Murder Spears argues that, because the evidence supporting the underlying felony of robbery with a dangerous weapon was weak, the evidence supporting felony murder was necessarily weak as well. The OCCA held that “a rational jury viewing the evidence in the light most favorable to the State could find the State proved beyond a reasonable doubt that Spears participated in taking Thompson’s pickup.” Spears, 900 P.2d at 439 (applying without citing Jackson). The OCCA pointed to the following evidence to support Spears’ taking of the truck: During the evening of September 21, 1990, Spears proposed the group drive out to the Klondike Cemetery. Hensley and Johnson testified as they drove out to the cemetery Powell and Spears discussed beating Thompson and taking his pickup. When they arrived at the cemetery, Powell told Spears, Johnson and Daniels he would strike Thompson as they walked towards the cemetery and advised the others to join in. The group started towards the cemetery and Powell struck Thompson in the head. Johnson and then Spears joined Powell in kicking, stomping and beating Thompson. When Powell, Spears and Johnson returned to the pickup, they took the pickup and Thompson’s wallet. Spears directed Johnson to take the truck to Tulsa and sell it. While Spears may not have driven Thompson’s pickup from the cemetery or taken it to Tulsa, we find directing its disposition certainly constitutes aiding and abetting.... [This] evidence sufficiently proves Spears wrongfully took Thompson’s pickup from him by force using his hands and feet as dangerous weapons. Id. (footnote omitted). Recognizing that “killing may precede, coincide with or follow the robbery and still be done in the commission of robbery with a dangerous weapon,” the OCCA found that there was sufficient evidence to prove that Spears killed Thompson during the commission of a robbery with a dangerous weapon: Hensley and Johnson testified they heard Spears and Powell talking about beating Thompson and taking his pickup. Spears and Powell then carried out their plan by beating and later stabbing Thompson and taking his truck. Spears directed Johnson to take Thompson’s pickup to Tulsa and sell it. This evidence sufficiently established a plan to rob and beat Thompson which was then carried out. Clearly, Thompson was killed during the course of the robbery. Id. at 440. Spears clearly participated in the beating and stabbing and in the plan to dispose of the truck. Even though Spears did not personally take the truck, his participation established his guilt under Oklahoma law. This leads to our conclusion that the OCCA’s determination was not an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1). iii. Powell and Felony Murder Powell argues that there was insufficient evidence to show that robbery was the motive for the murder or that he had the intent to commit robbery with a dangerous weapon. According to Powell, the evidence showed that he intended to beat Thompson, but did not intend to kill him or steal his truck or wallet. As succor, Powell points to evidence that Thompson permitted others to drive his pickup the night of the murder and that Johnson bought beer because Thompson had no money. Powell also points to evidence indicating that, after the beating, Daniels suggested taking Thompson’s wallet, and Powell did not want any of the proceeds of the truck after Johnson sold it. Finally, Powell asserts that he was not informed of a meeting between the prosecutor and Hensley held after the preliminary hearing, during which Hensley, for the first time, remembered the on-the-way-to-the-cemetery discussion between Powell and Spears about taking Thompson’s pickup, and after which she was released from jail. Considering the testimony of Hensley and Johnson, that they heard Powell and Spears talking about beating Thompson and taking his truck before the attack, the OCCA found that there was sufficient evidence to show that Powell intended to rob Thompson. Powell, 906 P.2d at 773-74. We agree that this evidence, viewed in the light most favorable to the State, is sufficient to show that robbery was the motive for the homicide, and conclude that the OCCA’s decision therefore was not an unreasonable application of Jackson. See 28 U.S.C. § 2254(d)(1). Further, Powell argues that there was insufficient evidence to show that the murder occurred during the commission of a robbery with a dangerous weapon, because the group had permission to drive Thompson’s truck and Thompson was killed before anyone suggested taking his wallet. Powell also argues that, because Thompson was dead before the robbery, there was no relationship between the killing and the robbery. Recognizing that in Oklahoma a “killing may precede, coincide with or follow the robbery and still be done in the commission of robbery with a dangerous weapon,” the OCCA decided that “a rational jury viewing the evidence in the light most favorable to the State could find the State proved beyond a reasonable doubt all of the essential elements of First Degree Felony Murder with the underlying felony of Robbery with a Dangerous Weapon.” Powell, 906 P.2d at 774 (applying without citing Jackson). The court pointed to evidence establishing a plan to rob and beat Thompson, which was then carried out: Hensley and Johnson testified that as they drove out to the cemetery Powell and Spears talked about beating Thompson and taking his pickup. Hensley testified she heard Powell ask “[w]ho is going to hit him first” as the group walked towards the cemetery. Powell, Spears and Johnson then attacked Thompson. When Powell, Spears and Johnson returned to the pickup, they took Thompson’s pickup and retrieved his wallet.... Additionally, Powell admitted he struck, stomped and kicked Thompson. He confessed that after the initial beating he, Spears and Johnson decided to steal Thompson’s pickup and kill Thompson. They went back to where Thompson was lying and all three stabbed him. Because two of the stab wounds were peri-mortem establishing Thompson was not dead when the stabbing began, Powell’s admission they decided to kill Thompson and steal his pickup is sufficient to show they killed Thompson during their robbery plan. Id. Based upon the totality of the evidence, we conclude that the OCCA’s determination was a reasonable application of Jackson. See 28 U.S.C. § 2254(d)(1). Finally, Powell argues that there was no evidence that Thompson was killed with Powell’s tennis shoes or a knife. Notably, on direct appeal and in his habeas petition, Powell argued solely that there was no evidence that a knife was the dangerous weapon. Indeed, on direct appeal, Powell argued that it was “arguably supportable” that the shoes were a dangerous weapon. (Powell’s Direct Appeal Br. at 34.) The OCCA’s conclusion that Powell took the pickup by use of a dangerous weapon, either by Powell’s hands or feet, or the knife, was reasonable. See Powell, 906 P.2d at 774-75; 28 U.S.C. § 2254(d)(1). Evidence at trial showed that Thompson was alive when the stabbing began, as two of the stab wounds were peri-mortem, and Johnson testified that with his first stab, blood squirted into his eyes. Even if Thompson was not alive at the time of the stabbing, it is undisputed that Powell used his hands and feet to inflict a beating. iv. Powell and Malice Murder Powell argues that the evidence was insufficient to show that he killed Thompson with malice aforethought. Rather, he contends that the evidence shows only that he had the intent to beat Thompson, but was forced to stab him. Powell further argues that it was undisputed that Thompson was already dead when he stabbed Thompson and that any intent Spears had to kill Thompson could not be imputed to Powell. Lastly, Powell asserts that he could not form the specific intent to kill because he was under the influence of alcohol at the time of the incident. Recognizing that a design to commit murder can be formed instantly, the OCCA rejected Powell’s argument, deciding that a rational jury could find Powell guilty of malice murder: Powell told Hensley and Daniels he wanted to assault Thompson. Powell admitted he repeatedly beat, stomped and kicked Thompson. After the initial beating, Powell, Spears and Johnson decided to steal Thompson’s truck and to kill him. They went back to Thompson’s body and repeatedly stabbed him. Johnson testified they did not initially intend to kill Thompson, but at some point they changed their minds and intended to kill him. Both Daniels and Johnson testified Powell instigated the beating of Thompson. Powell’s own admissions support his conviction for First Degree Malic